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UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 14-6449

UNITED STATES OF AMERICA,


Plaintiff Appellee,
v.
ISHMAEL AVIVE SANTIAGO,
Defendant Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:11-cr-00287-BO-2; 5:13-cv-00796-BO)

Argued:

October 27, 2015

Decided:

December 22, 2015

Before NIEMEYER and SHEDD, Circuit Judges, and M. Hannah LAUCK,


United States District Judge for the Eastern District of
Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Christopher D. Smith, WEST VIRGINIA UNIVERSITY COLLEGE


OF LAW, Morgantown, West Virginia, for Appellant.
Seth Morgan
Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
ON BRIEF: Lawrence David Rosenberg,
Washington, D.C., Stephanie D. Taylor, JONES DAY, Pittsburgh,
Pennsylvania, for Appellant.
Thomas G. Walker, United States
Attorney,
Jenifer
P.
May-Parker,
Assistant
United
States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
Ishmael Avive Santiago appeals the denial of his 28 U.S.C.
2255

motion,

arguing

that

his

counsel

rendered

ineffective

assistance at his Rule 11 hearing, at sentencing, and on appeal.


See

Strickland

v.

Washington,

466

U.S.

668

(1984).

Because

Santiago fails to show Strickland prejudice, we affirm.


I.
Santiago
conspiracy

was

to

charged

commit

Hobbs

in

Act

three-count
robbery,

in

indictment
violation

with
of

18

U.S.C. 1951 (Count 1); Hobbs Act robbery, in violation of 18


U.S.C. 1951 and 2 (Count 2); and using and carrying a firearm
and possessing a firearm in furtherance of a crime of violence
and aiding and abetting, in violation of 18 U.S.C. 924(c) and
2 (Count 3). These charges stem from the robbery of a Walgreens
in

Clayton,

North

Carolina,

carried

out

by

Santiago

and

his

cousin, Rhaim.
As the two men entered the store, they wore bandanas over
the lower portion of their faces and Rhaim was armed with an SKS
rifle 1. After they entered the store, Rhaim accosted a store
clerk who was stocking merchandise, pointed his rifle at her,

Although not necessary for our decision, we note that


Rhaim and Santiago both confessed to authorities that they
mutually agreed, along with an unnamed juvenile male, to
purchase a rifle and commit an armed robbery.

and demanded that she open the cash register. Upset that the
clerk was taking too long, Rhaim struck her in the back of the
head

with

Santiago

the

and

rifle

Rhaim

and

walked

absconded

her

with

to

less

the

than

cash
$500.

register.
The

store

clerk suffered a laceration on the back of her head and was


treated

at

the

local

hospital.

Santiago

turned

himself

in

several days later and confessed his involvement in the robbery.


In addition, authorities recovered a cell phone with images of
Santiago

and

Rhaim

posing

with

the

gun

and

money

after

the

robbery 2.
At Santiagos initial hearing before a magistrate judge, he
was told that the 924(c) count subjected him to a penalty of
not

less

than

[five]

years,

no

more

than

life

imprisonment

consecutive to any other sentence imposed. (S.J.A. 231). The


magistrate

judge

asked

if

Santiago

understood

and

Santiago

responded affirmatively.
Prior to trial, Santiago decided to plead guilty to Counts
1 and 3 pursuant to a plea agreement. Relevant here, regarding
Count

1,

the

plea

agreement

provided

that

Santiago

would

be

entitled to a three-level reduction of his offense level due to


acceptance of responsibility. As to Count 3, the plea agreement
explained that Santiago faced a maximum term of imprisonment of
2

The robbery was also caught on video surveillance.

life,

consecutive

to

any

other

term

of

imprisonment

and

minimum term of imprisonment of [five] years, consecutive to


any

other

term

of

imprisonment.

(J.A.

212).

Santiago

also

agreed, as part of the plea agreement, that:


the Court will take into account, but is not bound by,
the applicable United States Sentencing Guidelines,
that the sentence has not yet been determined by the
Court, that any estimate of the sentence received from
any source is not a promise, and that even if a
sentence up to the statutory maximum is imposed, the
Defendant may not withdraw the plea of guilty.
(J.A. 212).
The district court conducted a Rule 11 colloquy prior to
accepting

Santiagos

plea.

During

the

colloquy,

the

court

mistakenly stated that Count 3 carries up to five years in


prison . . . consecutive to any other prison time. (J.A. 27-28)
(emphasis added). Neither the Government nor Santiagos attorney
objected

to

this

Santiago

of

the

statement.
potential

The

for

an

court

also

enhanced

did

not

mandatory

inform
minimum

under 924(c)(1)(A). 3 After the courts misstatement, Santiago


affirmed that he read and understood the plea agreement and that
he had no additional questions. Santiago also affirmed that his
counsel had explained the plea agreement and that his plea was
3

Section 924(c) provides a mandatory minimum of five years


if the defendant used and carried a firearm during a crime of
violence, but also provides for an enhanced penalty of seven
years if the firearm was brandished and ten years if the firearm
was discharged. 18 U.S.C. 924(c)(1)(A)(i-iii).

voluntary. At the end of the hearing, the court accepted the


plea.
Following

the

Rule

11

hearing,

the

probation

office

prepared Santiagos Presentence Report (PSR). On Count 3, the


PSR found that because the firearm was brandished during the
robbery, 924(c)(1)(A)(ii) applied. That statute provides for a
mandatory minimum of seven years imprisonment (rather than five)
if

the

firearm

was

brandished.

Thus,

the

PSR

recommended

guidelines range of 84 months on Count 3 consecutive to any


sentence for Count 1. For Count 1, the PSR recommended a base
offense level of 20, with a three-level enhancement for causing
bodily injury, a four-level enhancement for abduction, and a
three-level

reduction

for

acceptance

of

responsibility.

This

calculation yielded a total offense level of 24 and a guidelines


range

of

51-63

months

imprisonment.

Without

the

three-level

reduction for acceptance of responsibility provided by the plea


agreement,

Santiago

faced

an

offense

level

of

27

and

corresponding guidelines range of 70-87 months imprisonment.


At sentencing, Santiago confirmed that he had received the
PSR and had an opportunity to review it prior to the hearing.
When asked twice if he had any comment on the PSR, Santiago
deferred to counsel, who objected to the four-level abduction
enhancement

on

Count

1.

Neither

Santiago

nor

his

counsel

mentioned the increase in the mandatory minimum from five years


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to seven years and at no point did Santiago move to withdraw his


plea.

The

abduction

district

court

enhancement

and

overruled
sentenced

the

objection

Santiago

to

to

51

the

months

imprisonment on Count 1 and 84 months imprisonment on Count 3,


to run consecutively.
Santiago filed a timely notice of appeal. Counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), but
did ask us to review the four-level abduction enhancement. We
issued a per curiam opinion affirming in part and dismissing in
part. United States v. Santiago, 498 Fed. Appx 222 (4th Cir.
2012). In reviewing Santiagos guilty plea, we concluded that
the

district

court

substantially

complied

with

Rule

11s

requirements, and committed no error warranting correction on


plain error review. Id. at *224.
In November 2013, Santiago filed a motion to vacate his
conviction

under

28

U.S.C.

2255.

Santiago

attached

an

affidavit alleging that his counsel was ineffective for failing


to

object

to

the

district

courts

misstatement

about

the

sentence and, consequently, his plea was unknowing as to Count


3. Santiago alleged that, had the district courts error not
occurred, he would have pleaded not guilty on Count 3 and gone
to trial and likely would have received the 60 month sentence
for Count 3. (J.A. 67). The Government moved to dismiss, arguing
that any error by the district court was cured by the plea
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agreement,

which

correctly

stated

that

five

years

was

the

statutory minimum, not the statutory maximum. The district court


granted the motion to dismiss, concluding that counsel was not
ineffective in failing to object at the Rule 11 hearing because
the plea agreement had the proper terms. The court explained,
[Santiago]
ineffective

cannot

meet

assistance

of

the

Strickland

counsel

as

it

standard
is

not

to

show

objectively

unreasonable to refuse to object to harmless error or pursue


such a claim on appeal. (J.A. 119).
Santiago filed a timely appeal and this court issued the
following certificate of appealability:
We grant a certificate of appealability on Santiagos
claim that his counsel, Leza Lee Driscoll, rendered
ineffective assistance of counsel at the Fed. R. Crim.
P. 11 hearing, at sentencing and on direct appeal for
failing to object to or raise a claim concerning the
district courts failure to advise Santiago of the
correct mandatory minimum and maximum penalties he was
facing for a violation of 18 U.S.C. 924(c) (2012).
(J.A. 125).
II.
We review de novo the district courts decision on a motion
to vacate under 2255. United States v. Poindexter, 492 F.3d
263, 267 (4th Cir. 2007). We are entitled to affirm on any
ground appearing in the record, including theories not relied
upon

or

rejected

by

the

district

court.

United

States

v.

Flores-Granados, 783 F.3d 487, 491 (4th Cir. 2015) (internal


quotation marks omitted).
To

prevail

Strickland,
Jones

v.

on

an

Santiago

Clarke,

ineffective

must

783

satisfy

F.3d

987,

assistance

two
991

claim

necessary

(4th

Cir.

under

components.

2015).

First,

Santiago must show that counsels performance was deficient.


This requires showing that counsel made errors so serious that
counsel

was

not

functioning

as

the

counsel

guaranteed

the

defendant by the Sixth Amendment. Strickland, 466 U.S. at 687.


Second,

Santiago

prejudiced

the

must

show

that

the

defense.

This

requires

deficient
showing

performance

that

counsels

errors were so serious as to deprive the defendant of a fair


trial, a trial whose result is reliable. Id. The Strickland
Court also made clear that [i]f it is easier to dispose of an
ineffectiveness

claim

on

the

ground

of

lack

of

sufficient

prejudice, . . . that course should be followed, and we do so


here. Id. at 697.
To establish Strickland prejudice, Santiago must show that
there

is

reasonable

probability

that,

but

for

counsels

unprofessional errors, the result of the proceeding would have


been

different.

reasonable

probability

is

probability

sufficient to undermine confidence in the outcome. Id. at 694.


Strickland asks whether it is reasonably likely the result
would have been different, and the likelihood of a different
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result must be substantial, not just conceivable. Harrington v.


Richter, 562 U.S. 86, 111-12 (2011).
This

prejudice

analysis

contains

another

layer

in

the

context of a guilty plea. Because a guilty plea is a solemn


declaration[]

in

open

court,

it

has

strong

presumption

of

verity that we will not set aside on subsequent presentation


of conclusory allegations unsupported by specifics. Blackledge
v. Allison, 431 U.S. 63, 74 (1977). Because a prisoner has
everything to gain and nothing to lose from filing a collateral
attack upon his guilty plea, id. at 71, strict adherence to
the

Strickland

reviewing

the

standard
choices

an

[is]

all

the

attorney

made

more
at

essential

the

plea

when

bargain

stage, Premo v. Moore, 562 U.S. 115, 125 (2011).


Thus,

to

establish

reasonable

likelihood

under

Strickland in this context, 4 Santiago must show a reasonable


probability that, but for counsels errors, he would not have
pleaded guilty and would have insisted on going to trial. Id.
at 129 (internal quotation marks omitted). Importantly, Santiago
must show both subjectively that he would have gone to trial and

Santiago has three claims of ineffective assistance: at


the Rule 11 hearing; at sentencing once the seven year mandatory
minimum was adopted; and on appeal for failing to raise the Rule
11 violation. However, all three ultimately turn on Santiagos
contention that he would have gone to trial if he had been aware
of the seven year mandatory minimum.

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that it would have been objectively reasonable to do so. United


States v. Fugit, 703 F.3d 248, 260 (4th Cir. 2012) (holding
what matters is whether proceeding to trial would have been
objectively

reasonable

in

Santiagos

subjective

light

of

all

preferences,

of

the

therefore,

facts).
are

not

dispositive. Id. As we recently explained:


The challenger cannot make that showing merely by
telling [the court] now that [he] would have gone to
trial then if [he] had gotten different advice. Pilla
v. United States, 668 F.3d 368, 372 (6th Cir. 2012).
In other words, to obtain relief from a guilty plea,
the defendant must do more than allege he would have
insisted on going to trial if counsel had not
misadvised him as to the consequences of that
decision. The petitioner must convince the court that
a decision to reject the plea bargain would have been
rational
under
the
circumstances.
Padilla
v.
Kentucky, 559 U.S. 356, 372 (2010).
Christian v. Ballard, 792 F.3d 427, 452 (4th Cir. 2015).
We readily acknowledge as a preliminary matter that the
district

court

committed

error

when

it

stated

that

Santiago

faced a maximum of five years imprisonment rather than a minimum


of five years and that Santiagos counsel should have noticed
this

error

and

moved

to

correct

it.

Santiagos

counsel

also

failed to recognize that the court did not inform Santiago of


the potential for enhanced mandatory minimums under 924(c). 5 It

At the very least, it became apparent that Santiago faced


a possible seven year mandatory minimum for brandishing when the
Government, in putting the factual basis for the plea on the
(Continued)
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is pellucid that a district courts failure to alert a criminal


defendant to a potential mandatory minimum sentence is a serious
omission that strikes at the core of Rule 11. United States v.
Massenburg, 564 F.3d 337, 346 (4th Cir. 2009); see also United
States v. Hairston, 522 F.3d 336, 341-42 (4th Cir. 2008) (same).
That Santiagos counsel failed to notice these errors, however,
does

not

mean

that

Santiago

was

prejudiced

by

his

counsels

failure.
Pleading guilty generally involves a conscious decision to
accept both the benefits and burdens of a bargain. That decision
may not be lightly undone by buyers remorse on the part of one
who has reaped advantage from the purchase. Fugit, 703 F.3d at
260. Moreover, [d]efendants plead guilty for various reasons,
many of which are wholly unrelated to the length of a potential
sentence. Massenburg, 564 F.3d at 344. Here, it would not have
been rational for Santiago to go to trial given the strength of
the

Governments

case

against

him

and

the

benefits

Santiago

derived from the plea agreement. We have repeatedly noted that


when the Governments case is strong, a defendant faces a nearly
insurmountable

obstacle

to

showing

that

it

would

have

been

rational to go to trial. Christian, 792 F.3d at 453 (noting not

record, stated that Santiagos co-defendant struck the clerk in


the back of the head with the gun.

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rational to reject plea when guilt was overwhelming), Fugit, 703


F.3d at 260 (same); Massenburg, 564 F.3d at 344 (noting when
case was a strong one the court can legitimately question
what Massenburg would have to gain by going to trial).
The
Santiagos

Government
guilt.

presented

The

robbery

overwhelming
was

on

evidence

videotape,

of

Santiago

confessed to robbing the Walgreens with his cousin, and images


depicted the two men posing with the gun and the money following
the robbery. Santiago argues that he did not possess the gun
that

was

brandished,

but

Count

charged

Santiago

with

the

924(c) violation and aiding and abetting. Santiagos defense


that his cousin, with whom he committed the robbery, had actual
possession of the gun is not a rational defense against an
aiding and abetting 924(c) charge. Pilla, 668 F.3d at 373.
In addition, there is no record evidence from Santiagos
plea or sentencing hearings suggesting that Santiago would have
moved

to

withdraw

his

plea

if

the

correct

information

was

provided. While the district court called the five-year term a


maximum rather than a minimum, the plea agreementwhich Santiago
affirmed multiple times he had readcorrectly referred to the
five-year term as a mandatory minimum. Regarding the seven-year
minimum recommended by the PSR, the district court specifically
asked Santiago if he read the PSR and had any objections or
comments on it. While the PSR cannot cure the Rule 11 violation
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in

his

case,

learning

of

evidence

that

Santiagos

the

seven

he

failure

year

would

to

mandatory

have

entered

take

any

minimum
the

action

after

provides

some

plea

regardless.

Massenburg, 564 F.3d at 344.


Finally,

as

recounted

above,

the

low-end

of

Santiagos

guidelines range on Count 1 dropped from 70 months to 51 months


as

result

of

the

three-level

reduction

for

acceptance

of

responsibility provided by the plea agreement. If Santiago had


gone to trial, he would have faced the same mandatory minimum of
seven years on Count 3, and, without the three-level reduction
for acceptance of responsibility, he would have been looking at
a

longer

sentence

on

Count

1.

In

effect,

then,

the

only

consequence of Santiagos decision to plead guilty rather than


going to trial is that [Santiago] got a shorter prison term
than otherwise. Pilla, 668 F.3d at 373. That decision certainly
did not prejudice Santiago.
Santiagos argument amounts to a presumption of Strickland
prejudice

in

mandatory-minimum

cases.

We

have

rejected

this

position in the context of plain error, and we reject it again


here.

See

Massenburg,

564

F.3d

at

345

(noting

[a]bsent

presumption of prejudice, Massenburg is left only to appeal to


our desire for an adjudicatory process that is free from error,
and

[e]rrors

are

commonplace,

and

our

affection

for

procedural perfection cannot operate to the detriment of our


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commitment

to

other,

equally

important,

principles

of

adjudication).
III.
Because

Santiago

cannot

show

Strickland

prejudice,

we

affirm the district courts dismissal of his 2255 motion.

AFFIRMED

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